Managing the Use of CBD Oil in Schools

by Attorneys Abby Busler and Robert Burns

Cannabidiol (CBD) is the newest buzzword flying around Wisconsin school districts. Students, staff and parents are discussing this product and want to know their school district’s perspective on this hot topic. The topic of CBD often becomes confused with marijuana. While states surrounding Wisconsin, such as Illinois and Michigan, legalized recreational marijuana use, Wisconsin law has not changed and marijuana continues to be illegal here and federally. This article focuses on CBD and provides the legal background of a rapidly changing enterprise and provides administrators with practical advice in considering CBD product requests in Wisconsin schools.

On November 26, 2019, Governor Evers signed 2019 Wisconsin Act 68 into law. This law revised many state statutes relating to CBD and hemp. As a result, CBD continues to be legal in Wisconsin and individuals seeking to use CBD no longer require a physician’s certificate. Individuals may possess CBD in a form that contains no more than 0.3 percent of tetrahydrocannabinol (THC).

“Hemp” is the broad term to describe the cannabis plant that is used when companies manufacture CBD products, including CBD oil. The recent Wisconsin legislation removed hemp-derived products from the Schedule I substance list, tracking the federal law as well. The term hemp is used to describe the type of cannabis plant that contains up to 0.3% of THC. ‘Hemp’ does not include a prescription drug product that has been approved by the U.S. food and drug administration.

The term “marijuana,” on the other hand, is used to classify the type of cannabis plant that contains more than 0.3% THC and can induce psychotropic or euphoric effects on the individual. The marijuana strains of plants are illegal in the state of Wisconsin and federally.

Ultimately, it is the type of plant that determines whether a substance is legal. If CBD products are derived from the hemp plant, then the products have no more than 0.3% of THC, meeting state and federal standards. However, if CBD products are made from the marijuana plant, then those products would exceed the THC level and be classified as illegal.

Wis. Stat. § 961.14(4)(t), lists tetrahydrocannabinols as a schedule I drug, but specifically excludes THC contained in hemp as defined in the newly revised version of Wis. Stat. § 94.55 (1), which specifies the permitted level of no more than 0.3 percent of THC. Additionally, Wis. Stat. § 961.32(2m) states that a physician note is not required to possess hemp, as defined in s. 94.55(1).

Student Application

Schools are governed by Wisconsin Statute sec. 118.29 in administering prescription and nonprescription drugs. The statute explains the process for administering nonprescription drugs below:

(a) Except as provided in subd. 1. b., may administer any nonprescription drug product which may lawfully be sold over the counter without a prescription to a pupil in compliance with the written instructions of the pupil's parent or guardian if the pupil's parent or guardian consents in writing. If the nonprescription drug product is supplied by the pupil's parent or guardian, the nonprescription drug product shall be supplied in the original manufacturer's package, and the package must list the ingredients and recommended therapeutic dose in a legible format.

(b) May administer a nonprescription drug product to a pupil in a dosage other than the recommended therapeutic dose only if the request to do so is accompanied by the written approval of the pupil's practitioner.

The statutory language is “may” instead of “must”, so the statutory language allows for local control of the decision whether to administer CBD oil in school. Administrators are likely encountering CBD related requests from students as CBD products are gaining popularity and accessibility. No minimum age requirement exists regulating children under 18 access to CBD products. Legality of the product, however, does not automatically mean there is a right to possess or use it in school. Under current law, each school or district will need to choose among options.

School districts around the state have taken different stances on CBD oil in school. Some districts require parents to administer the CBD oil before school and do not allow any CBD products on district property. Other districts allow CBD products on school property but limit access to the CBD products while on school grounds. For example, a school may allow CBD products but require that students administer the product in the main office and leave the product at the office. Some may allow administration under the procedure in Section 118.29 addressed above.

School districts considering such options regulating CBD products should also consult with their school nurses. Because CBD oil is not a FDA approved medication, school nurses may have varying opinions on the appropriateness of dispensing CBD products to students. For example, some school nurses prefer the students to self-administer the medication in the school office.

Employee Application

Districts are likely to encounter requests from employees to use CBD related products. CBD related products containing less than 0.3% THC are legal and employees may use the lawful product, but, as with other products, the employer can regulate its possession and use at work. However, even if the product is used off-site and off-duty, it is the employee’s responsibility to ensure he/she is purchasing a product that is at legitimate levels and will not result in a positive drug test.

Public school employees have protected rights against unlawful search and seizure and are not treated the same as private sector employees. In most instances, administrators will need reasonable suspicion based on conduct or an incident to require a drug test. Employees working in “safety sensitive” positions may be subject to random drug tests, but such classification should be carefully reviewed.

Ultimately, if an employee chooses to use CBD products, then it is that employee’s responsibility to ensure the product he/she purchases complies with the law. Products containing 0.3% or more THC continue to be illegal both here in Wisconsin and federally.

Conclusion

As noted above, school districts across the state take a variety of stances relating to CBD products that range from a total ban to allowing self-administration with staff supervision. The industry may be subjected to additional regulation and some of that may be directed at the school setting. As familiarity and knowledge regarding CBD grows, including the distinctions between CBD and marijuana, districts will be better able to evaluate their eventual policy provisions.

* * *

This article was written by Attorneys Robert W. Burns and Abby S. Busler of Davis & Kuelthau, s.c. The views expressed herein are exclusively those of Mr. Burns and Ms. Busler. This article was designed to provide general authoritative information and commentary as a service to AWSA members. It should not be relied upon as legal advice. You are encouraged to contact your district legal counsel should you require legal advice regarding this topic.